1. We agree with Basheer Ahmed Sayeed J. that the claim of the Corporation for recovery of the amount of the expenses of the work done by them under Section 218 of the City Municipal Act is barred by limitation under Section 390-A of the City Municipal Act. Under Section 218(2), if the owners fail to carry out the work which they have been called upon to carry out under Section 218 (1) within the time prescribed in the notice issued to them, the Commissioner may execute such work and the expenses incurred by him shall be paid by the owners in such proportions as may be settled by the Commissioner. The suit was filed beyond three years from the date on which the expenses can be said to have been incurred by the Corporation. But it was contended on behalf of the Corporation that the claim was within time because the Commissioner settled proportions as between the several owners within a period of three years from the institution of the suit. The trial court and Basheer Ahmed Sayeed J. on appeal held that the starting point of limitation cannot be postponed by the action of the Commissioner and that time would commence to run from the date on which the expenses were incurred.
Section 390-A lays down that no suit shall be instituted in respect of any sum due to the Corporation after the expiration of a period of three years from the date on which the suit might first have been instituted in respect of such sum. The contention on behalf of the Corporation is that till the proportions are settled by the Commissioner a suit could not have been instituted. In our opinion, this contention is based on a fallacy.
It is true that under Section 218(2) each of the several owners is not liable to pay the entire amount of the expenses incurred in respect of the street or part thereof in respect of which the work was carried out by the Corporation. But it is not correct to say that the Corporation was not entitled to recover the expenses by suit the moment such expenses were incurred. There is no time limit nor is any particular procedure laid down for the Commissioner to settle proportions. Indeed, we see no reason why the Commissioner cannot make the apportionment in the suit itself which may be instituted for the recovery of the amount of the expenses from the several concerned owners. If we accept the contention of the Corporation, the logical result would be that it would rest entirely with the Commissioner to fix an arbitrary date for the starting of limitation, that is, it would lie within his power by settling the proportions on any day he pleases to postpone the commencement of limitation. We cannot contemplate with equanimity such a result. There is nothing in Section 390-A nor in Section 218 (2) which com-pels us to take this view.
2. The appeal is therefore dismissed.